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Environmental Law Projects
A. National Environmental Policy Act
1. New Bedford et al. v Locke et al.
In August 2010, IPR began representing Food & Water Watch, Inc. in its efforts to challenge a major amendment to the regulatory regime of the Northeast groundfish fishery. Food & Water Watch is a national, non-profit public interest consumer-advocacy organization that works to ensure safe food and clean water by advocating for healthy food produced in a humane and sustainable manner, and public rather than private control of water resources. The Food & Water Watch Fish Program promotes safe and sustainable seafood for consumers while helping to protect the environment and supporting the long-term well-being of coastal and fishing communities.
Food & Water Watch opposes the amendment because it contains economic incentives that tend to drive out smaller-scale fishermen and favor large-scale industrial fishing operations. Smaller-scale fishermen contribute to the local economy and make use of less-damaging fishing gear, while the industrial-sized vessels replacing them employ a much more environmentally harmful type of fishing gear known as “bottom trawls.” The National Marine Fisheries Service implemented the amendment without holding the statutorily required democratic vote of local fishermen and without sufficient consideration of the adverse environmental effects or more environmentally safe and sustainable alternatives.
In spring 2011, Food & Water Watch filed an amicus brief in support of plaintiffs in a federal lawsuit then pending in the U.S. District Court for the District of Massachusetts against the Department of Commerce, The National Oceanic and Atmospheric Administration and the National Marine Fisheries Service. Food & Water Watch argued that the fishery plan amendment violated the Magnuson-Stevens Fishery Conservation and Management Act and the National Environmental Policy Act.
In summer 2011, the district court issued an opinion ruling against the plaintiffs on each of their claims. Plaintiffs filed an appeal in the First Circuit Court of Appeals, and Food & Water Watch sought leave to file an amicus brief in support of appellants. During fall 2011, IPR students researched and drafted an amicus brief, and IPR filed an amicus brief on Food & Water Watch’s behalf on December 29, 2011. The parties have filed response and reply briefs, and the First Circuit will likely hear the case in fall of 2012.
2. Lemon v. McHugh
Since the fall of 2008, IPR has represented two individual plaintiffs in a suit against the Secretary of the Army brought in the U.S. District Court for the District of Columbia. The lawsuit concerned the proposed redevelopment of Fort Ritchie, a former Army base in northern Maryland that contains numerous historic properties and expansive green spaces. In preparation for transferring the Fort to the local redevelopment authority, the Army analyzed the environmental impacts of the authority’s redevelopment plan. The developer chosen to ultimately receive the property, however, created a new redevelopment plan that significantly increased the amount of land developed, including construction on the Fort’s historic parade grounds.
The Army refused plaintiffs’ request to analyze the impacts of the amended redevelopment plan. Plaintiffs brought suit, claiming that the Army violated the National Environmental Policy Act by failing to analyze new significant environmental impacts. Plaintiffs argued in the summary judgment briefing that the Army must analyze impacts in connection with the greater development intensity, increased impervious surfaces, construction on the historic parade grounds, transfer of the water system to a private entity, and the county’s recent failure to meet national air quality standards for particulate matter.
In November 2009, the District Court issued an order enjoining further development on the site and remanding the matter to the Army to analyze the increase in development intensity and the impact of the redevelopment plan on the historic properties. The Army and plaintiffs each appealed, but subsequently voluntarily dismissed their appeals in light of the Army’s decision to issue a new draft analysis. Released on August 9, 2010, the draft document responds to the District Court’s order, expressly addresses some of plaintiffs’ contentions, and analyzes the redevelopment of Fort Ritchie based on a revamped development plan issued in June 2010. Among other things, the 2010 plan proposes to eliminate any building construction on the historic parade grounds and addresses storm water runoff from impervious surfaces by proposing to “daylight” a stream running through Fort Ritchie and creating on-site impoundment. The plan also proposes, however, a significant increase in the amount of buildings on the site, including residential housing that will substantially increase the residential population.
IPR submitted comments on the draft analysis to the Army in September 2010. In December 2010, the Army issued a final document responding to some of these comments. The final analysis still contained many deficiencies. In an attempt to avoid going back to court, the Army agreed to issue a supplemental document addressing plaintiffs’ continuing concerns. In the meantime, the Army discovered that Fort Ritchie had been the subject of tactical herbicide testing in the late 1950s and early 1960s.
In June 2011, the Army issued a supplemental document addressing plaintiffs’ issues and the presence of tactical herbicides at Fort Ritchie and concluded that no further environmental analysis was necessary. The analysis, however, still fails to account for the significant increase in buildings and residential populations. In July 2011, IPR submitted a letter to the Army identifying these deficiencies and asking that the Army issue a new analysis to avoid further litigation. In August 2011, the Army contacted IPR and stated that, in consideration of the issues identified in the July 2011 letter, the Army would prepare a Supplemental Environmental Impact Statement thoroughly analyzing the 2010 plan’s effects. In November 2011, the parties filed a Joint Stipulation of Dismissal, in which IPR agreed to dismiss claims against the Army. In exchange, the Army agreed to prepare a supplemental analysis and prohibit any new construction on the Fort Ritchie site pending completion of the new environmental review. The Court accepted the agreement, and the case was dismissed on November 14, 2011.
Following the termination of the case, IPR sought recovery of its attorneys’ fees and litigation costs from the Army under the Equal Access to Justice Act. IPR submitted a petition for fees on December 14, 2011. Simultaneously, IPR sought a stay of the briefing to allow time to reach a settlement with the Army. After successfully reaching a settlement, the parties filed a motion to dismiss the fee petition on February 15, 2012. In July 2012, the Army paid IPR $33,000 for time spent litigating the case.
3. Cape Wind
In late spring 2011, IPR began representing the Wampanoag Tribe of Gay Head (Aquinnah) in its opposition to the Cape Wind Energy Project, a proposed offshore wind farm to be located 3.5 miles off the coast of Massachusetts. The Department of the Interior approved the construction and operation of the 130-turbine generator wind farm in a 25-square mile area of Nantucket Sound, known as Horseshoe Shoal, in April 2011.
The Tribe’s reservation is located on the western side of Martha’s Vineyard Island, and the Tribe has used Horseshoe Shoal for food, religion, and livelihood since “time immemorial.” Construction of the project will irreparably disturb the seabed, which holds cultural and archaeological significance to the Tribe and was recently determined to be eligible for inclusion in the National Register of Historic Places. In addition, operation of the wind farm will disrupt the Tribe’s spiritual ceremonies by obstructing the viewshed of the Eastern horizon and will interfere with the Tribe’s practice of subsistence fishing in the area.
The Tribe filed a complaint in the U.S. District Court for the District of Columbia in July 2011 against the Department of the Interior and the Bureau of Ocean Energy, Management, and Regulation (formerly known as the Minerals Management Service). The complaint alleges that the agencies did not adequately consider the project’s impacts on the Tribe in violation of the National Environmental Policy Act and the National Historic Preservation Act. The Tribe’s case was consolidated with a similar action filed in the same court last June by several citizen groups.
During the fall of 2011, IPR researched the Tribe’s claims, reviewed the government’s extensive administrative record, and began drafting the Tribe’s Motion for Summary Judgment. In November 2011, one IPR fellow and two IPR students travelled to Boston to give a presentation on the case to Boston University law students. IPR also met with Tribal representatives on Martha’s Vineyard and toured the Island with the Tribe.
IPR continued working on the Tribe’s Motion for Summary Judgment in spring 2012. Although the plaintiff’s motions on summary judgment were originally due March 1, the deadline has continually been pushed back in light of continuing controversy about the sufficiency of the government’s administrative record and the D.C. Circuit’s decision to vacate the Federal Aviation Administration’s determination that the wind project would not pose a safety hazard to aviation. IPR attended status hearings in February 2012 and June 2012, in which the parties discussed these issues and attempted to reach agreement on a new schedule to settle administrative record issues and file motions for summary judgment. The Court is currently considering the issue of whether the government unlawfully withheld portions of the administrative record. Following a decision, the Court is expected to set a new briefing schedule.
IPR expects to file a Motion for Summary Judgment in early fall 2012.
B. Clean Water Act
1. Save Our Springs Alliance Wastewater Discharge Project
In the spring of 2012, IPR represented Save Our Springs Alliance on a project to address the problem of pollution of the Edwards Aquifer in Texas. Save Our Springs Alliance is an Austin, Texas-based non-profit that works to protect the Edwards Aquifer, as well as its springs and contributing streams, and the natural and cultural heritage of the Texas Hill Country region and its watersheds.
Save Our Springs Alliance was concerned about groundwater pollution from land-applied municipal wastewater. The Texas Commission on Environmental Quality (“TCEQ”) issues permits to wastewater treatment plant operators that allow those operators to spray treated wastewater onto land areas. TCEQ considers these “no discharge” permits because the wastewater is sprayed onto land rather than directly into waters, and therefore they are not regulated under the Clean Water Act. A November 2011 report released by the Greater Edwards Aquifer Alliance and Save Our Springs Alliance found, however, that poorly operated land application systems and a lack of permit standards are putting water resources at risk and causing pollution. Thus, TCEQ’s permitting of land disposal of wastewater is failing to protect Texas’s ground and surface waters.
IPR researched potential ways to address this problem. In May 2012, IPR submitted an Opinion Letter documenting its research and discussing Save Our Springs Alliance’s litigation and non-litigation options under the Clean Water Act and Texas law. In addition, IPR, with the help of a class of first-year law students, reported on the practices of other states implementing wastewater land application programs. Save Our Springs Alliance is very excited to begin implementing IPR’s suggestions to tackle this issue.
C. Equal Access to Justice Act
1. Alliance to Save the Mattaponi, et al. v. United States Army Corps of Engineers
Since 1996, IPR has represented the Mattaponi Indian Tribe in its opposition to the City of Newport News’s construction of a large-scale reservoir located near the Tribe’s reservation in southeastern Virginia. The reservoir project threatened more than two hundred and fifty Indian archeological sites, many of which are eligible for inclusion in the National Register of Historic Places, and would have resulted in the largest destruction of wetlands in Virginia since the passage of the Clean Water Act. The Tribe’s reservation is on the banks of the Mattaponi River, three miles downstream from where water would have been withdrawn to fill the proposed reservoir. The Mattaponi people subsist on an annual shad harvest from the Mattaponi River, and the proposed intake pipe for the reservoir was located in the middle of prime shad spawning grounds.
The Tribe challenged the reservoir project on many fronts, and in 2009, the Tribe and other reservoir opponents finally defeated the project after a series of legal and political victories. One of these was a successful lawsuit in the U.S. District Court for the District of Columbia challenging the Clean Water Act permit for the project under the National Environmental Policy Act. In late March 2009, the District Court found that the Corps and EPA acted arbitrarily and capriciously in issuing the permit. In October 2009, the City of Newport News passed a resolution to discontinue the reservoir project, and directed the acting City Administrator to terminate work on the project and surrender all previously obtained permits. In support of this decision, the City cited the District Court decision and the government’s decision not to appeal.
At the end of 2009, IPR petitioned for attorneys’ fees and costs under the Equal Access to Justice Act. In August 2010, a magistrate judge issued a recommendation that the district court find that that the Tribe is entitled to attorneys’ fees. In reaching this recommendation, the magistrate found that the Tribe had prevailed in the underlying action and that the government’s position was not substantially justified. Rather than recommend a fee award, however, the magistrate opted for a tiered resolution, whereby the district court would decide whether to accept or reject the magistrate’s fee entitlement recommendation before the magistrate calculated a reasonable fee award.
The government filed an objection to the magistrate’s recommendation, arguing that the government’s underlying action and its defense of the underlying action were substantially justified, but, in September 2012, the district court affirmed the magistrate judge’s conclusion with regard to most of the issues in the case and remanded the case to the magistrate judge to determine the appropriate size of the fee award. The magistrate judge has not yet made this determination.
D. Climate Change
1. Nitric Acid Plant New Source Performance Standards
The Clean Air Act mandates that the Environmental Protection Agency (“EPA”) revise new source performance standards (“NSPS”) every eight years. NSPS for nitric acid plants, which are listed as a source of nitric oxides, have not been revised since the 1980s. In 2009, the Environmental Integrity Project filed suit against the EPA, seeking to force the agency to revise emissions standards for nitric oxide and to add a standard for nitrous oxide, a greenhouse gas also emitted by nitric acid plants. Nitrous oxide has 310 times the heat retaining ability of carbon dioxide. EPA and the Environmental Integrity Project reached a settlement requiring EPA to update the nitric oxide standard but not addressing nitrous oxide.
In November of 2011, pursuant to that settlement, EPA published a proposed rule creating a more stringent emissions standard for nitric oxide. IPR assisted the Institute of Policy and Integrity, of New York University School of Law, and the Environmental Defense Fund, in drafting comments on the proposed standard. The comments argued that the Clean Air Act required the EPA to set a standard for nitrous oxide as well.
In the spring of 2012, IPR drafted an Opinion Letter for EDF, reviewing the options EDF would have to seek regulation of greenhouse gas emissions from nitric acid plants should the final rule not incorporate its comments. The final rule, issued in May 2012, but yet to be published in the Federal Register, contains no standard for nitrous oxide.
E. Open Government
1. McMillan Park Committee v. District of Columbia
In spring 2009, IPR began assisting the McMillan Park Committee (“MPC”) with its efforts to protect the historic resources and open green space of McMillan Park. The District of Columbia owns the McMillan Park sand filtration site, comprised of 26 acres of open space fenced off from public use and unique brick tower-like structures built in 1906 for the purpose of water filtration. The District plans to transfer the property to a private developer who proposes to remove most of the historic structures and construct apartments, condominiums, and retail facilities, leaving approximately 3–4 acres of contiguous open space for public use. Many community members and groups in addition to MPC were concerned about the intensity of the proposed development, lack of usable public space, and failure to protect more of the unique historic resources in McMillan Park.
In February 2009, IPR submitted District of Columbia Freedom of Information Act (“D.C. FOIA”) requests on behalf of MPC to gather information about the new redevelopment proposal and its environmental and historic resource impacts. IPR also sent a letter to the mayor of D.C., urging him to conduct an environmental analysis before transferring the property to the developer. With the exception of the Deputy Mayor’s Office, IPR received adequate responses to its D.C. FOIA requests. The Deputy Mayor’s Office refused to disclose an indefinite number of emails between it and Vision McMillan Partners, the private developer for McMillan Park, citing the inter/intra-agency exemption under D.C. FOIA.
In spring 2010, MPC filed the administrative appeal but received no response within the statutory period. Accordingly, MPC filed a complaint for declaratory and injunctive relief in D.C. Superior Court.
The District filed a Motion for Judgment on the Pleadings, or, in the Alternative, for Summary Judgment, arguing that the case was moot because the District had explained to MPC in a Vaughn index why it was withholding hundreds of public records. In fall 2010, MPC filed an opposition to the Motion, explaining that MPC’s challenge to the District’s non-disclosure was within the court’s purview to decide. MPC then filed a Motion for Summary Judgment arguing that the Vaughn index was inadequate and that the District had failed to justify withholding responsive records.
In March 2011, the court issued an order denying the District of Columbia’s Motion for Judgment on the Pleadings, or, in the Alternative, for Summary Judgment. The court explained that the District failed to provide sufficient information to justify non-disclosure of the withheld records. A week later, the court issued an Order holding in abeyance MPC’s Motion for Summary Judgment pending the District’s issuance of a revised Vaughn index that further describes the withheld documents and specifically addresses the segregability of the withheld information.
The District filed a Motion for Reconsideration, or, in the Alternative, for Additional Time to Comply. The court denied the District’s Motion for Reconsideration but granted the District’s request for additional time. The District filed a revised Vaughn Index and two new affidavits on September 26, 2011. The District also filed all the contested documents, suggesting the court might review them in camera.
Following the District’s submission of a revised Vaughn Index and two new affidavits, MPC supplemented its original Motion for Summary Judgment, arguing that the District had still not established the applicability of any of D.C. FOIA’s exceptions and that in camera review was an inappropriate substitute.
In March 2012, the court issued an Order again holding MPC’s Motion for Summary Judgment in abeyance while the court undertakes in camera review. That review is still ongoing.
In the interim, development activities at McMillan Park have continued. In March 2012, developer Vision McMillan Partners released revised plans for the site, which call for preservation of more of the existing structures and far more open space than the original plans.
F. Native American Water Rights
On February 14, 2012, United States Senators Jon Kyl and John McCain introduced the Navajo-Hopi Little Colorado River Water Rights Settlement Act, authorizing a proposed agreement between the Navajo Nation, the Hopi Tribe, the federal government, and the State of Arizona settling the tribes’ claims to the Little Colorado River and the Gila River. The bill attempted to secure water rights for the tribes by authorizing their governments to waive their first-priority legal claims to the rivers in exchange for federally funded water-delivery projects that will bring potable drinking water to the reservations.
In mid-March 2012, IPR agreed to review and summarize the bill for Diné Citizens Against Ruining Our Environment, a grassroots environmental advocacy group of Navajo Nation members. IPR students reviewed both the proposed bill and the draft settlement agreement on which it was based. In addition to settling Navajo and Hopi claims to the two rivers, the bill also called for the reallocation of 6,411 acre-feet per year of water from the Central Arizona Project to the Navajo Nation. The bill made that reallocation contingent on a number of conditions including continued operation of Peabody Western Coal Company’s Kayenta Mine, a coal mine located on the Navajo and Hopi reservations, and the continued operation of the Navajo Generating Station, a coal-fired power plant reliant on that mine. IPR provided the bill summary for Diné Citizens Against Ruining Our Environment to use in its advocacy work in opposition to the settlement agreement.
In July 2012, the Navajo Nation tribal council voted to reject the agreement. The agreement, in its current form, is, therefore, dead.
G. Strip Mining
1. To’ Nizhoni Ani, et al. v. Office of Surface Mining Reclamation and Enforcement
IPR represents a coalition of non-profit organizations in an administrative appeal of a coal mine permit renewal. The coalition includes To’ Nizhoni Ani, Diné Citizens Against Ruining Our Environment, Black Mesa Water Coalition, Sierra Club, and the Center for Biological Diversity (collectively, “TNA”).
The Peabody Western Coal Company (“PWCC”) has been mining at Kayenta, in northeastern Arizona, since the 1960s. In 1990, the company received a life-of-mine permit under the Surface Mining Control and Reclamation Act (“SMCRA”), which establishes environmental standards for strip mining and requires that permittees seek a permit renewal every five years.
In 2010, the PWCC sought to renew its permit for the fourth time. In August of 2011, the Office of Surface Mining Reclamation and Enforcement (“OSMRE”), an agency within the Department of the Interior that has enforcement authority over SMCRA, issued an environmental assessment of the permit renewal. In the fall of 2011, IPR assisted Brad Bartlett, of the Western Energy Justice Project, in drafting comments on the environmental assessment on behalf of TNA. The comments raised concerns, among other things, about the impacts of mining on traditional cultural properties in the mine vicinity and on the hydrologic balance of the Navajo Aquifer, the primary source of water for both the mine and the residential communities in the vicinity of the mine.
OSMRE renewed the permit on January 6, 2012. TNA filed an administrative appeal of the renewal on February 17, 2012, thirty days after PWCC had received written notice of the renewal. The appeal raises claims under SMCRA, the National Historic Preservation Act, the National Environmental Policy Act, and the Administrative Procedure Act. PWCC filed a motion to dismiss arguing that TNA’s appeal was filed too late. The administrative law judge denied the motion without briefing, but PWCC sought interlocutory review of the decision from the Interior Board of Land Appeals. PWCC argued that the appeal was barred by SMCRA, which allows appeals to be filed within thirty days of notice to the permittee of the permitting decision. PWCC argued that the thirty days runs from the date that the permittee receives actual notice, which, in this case occurred when the company received a phone call from OSMRE, which occurred several days before PWCC received written notice. TNA argued that the thirty days runs from the date that the permitee receives written notice. The Interior Board of Land Appeals agreed the case was timely and rejected PWCC’s appeal.
In May 2012, PWCC and TNA filed cross motions for summary judgment. PWCC sought summary dismissal of five claims, each involving SMCRA. TNA sought summary judgment on four claims, two related to SMCRA, and two related to the preservation of cultural resources. Both motions are still pending.
In addition, in June 2012, TNA filed a separate administrative challenge to a 2010 permit revision, but it withdrew the challenge after learning it was untimely.
H. Toxic Site Cleanup
1. Anacostia Watershed Society & Anacostia Riverkeeper v. Washington Gas Light Co.
IPR represents the Anacostia Watershed Society (AWS) and the Anacostia Riverkeeper (ARK) in their efforts to secure remediation of a legacy toxic site in the Anacostia watershed. Both AWS and ARK are nonprofit organizations committed to restoring the health of the Anacostia River and its watershed.
For nearly a century, Washington Gas operated a gas manufacturing plant located near the Anacostia River at the southeast corner of M and 12th Streets in Southeast Washington, DC. Originally, marshes, wetlands, and mudflats existed between the plant and the river. By 1919, the seawall along the river was complete and the naturally occurring estuarine features had been filled in behind the seawall, creating the site’s current topography. In addition to the dredged material from the Anacostia River, Washington Gas placed fill material in the wetlands that contained coal tar mixed with solid wastes from the gas manufacturing plant. As a result, the soil and groundwater on an 18.8-acre site were contaminated with coal tar and other gas manufacturing waste constituents that contain toxic carcinogens. The section of the Anacostia River adjacent to the contaminated land is also contaminated. Fish in the Anacostia generally have a high cancer rate attributable to high concentrations of polynuclear aromatic hydrocarbons (“PAHs”), among other carcinogens. PAHs are found in the soil on the site and a PAH hot spot exists in the river adjacent to the site.
Under a 1999 record of decision, most of the contaminated land has been remediated. But approximately 4.5 acres of land, most of which was formerly managed by the National Park Service, remains unremediated, as does the affected nearshore areas of the Anacostia River. In 2008, the District of Columbia acquired ownership of the unremediated land. Currently, the unremediated land hosts multiple uses, including unrestricted public access to the seawall, from which people can fish and launch non-motorized boats. A 2006 record of decision addressing the unremediated land concluded that the soil poses an unacceptable health risk for juveniles recreating on the site and for utility, construction, and landscape workers working on the site.
Despite the documented risks, local and federal agency efforts to reach an agreement with Washington Gas to implement remedial actions for the remaining land and the Anacostia River stalled, in part because of complications arising from the transfer of land from federal to local control. AWS and ARK sought IPR’s help to jumpstart the process. In mid-December 2010, IPR sent a ninety-day notice of intent to sue letter to Washington Gas and the District of Columbia under the Resource Conservation and Recovery Act’s (“RCRA”) imminent and substantial endangerment citizen suit provision.
In spring 2011, IPR submitted Freedom of Information Act requests to local and federal agencies. IPR also attended several meetings at which local and federal representatives outlined the parameters of the potential clean-up plan. Because the proposed plan fell short of the clients’ expectations, IPR sent a letter to the Director of the District Department of the Environment expressing concern about several crucial omissions from the proposed clean-up plan, including the lack of a plan to remediate the contaminated river sediments.
In August 2011, AWS and ARK brought suit against the Washington Gas Light Company in Federal District Court for the District of Columbia, alleging violations of RCRA and seeking an injunction requiring Washington Gas to clean up the site. Washington Gas filed a motion to dismiss arguing that because of ongoing federal and local efforts to begin the cleanup process, the court lacked jurisdiction to hear the case. In the alternative, Washington sought a stay pending completion of a consent decree between the company, the National Park Service and the District of Columbia. That motion is still pending.
In December 2011, the District of Columbia, the federal government, and Washington Gas finally reached an agreement. The two governments filed a complaint against Washington Gas under the Comprehensive Environmental Response Compensation and Liability Act and immediately lodged a consent decree, laying out a plan for cleanup and providing sixty days for public comment. IPR assisted AWS and ARK in drafting comments addressing both the consent decree’s technical aspects and its provision for future public participation. After submitting those comments, AWS and ARK moved to intervene in the consent decree proceedings. With the consent of all the parties, AWS and ARK also filed a motion seeking to hold briefing on the intervention motion in abeyance until the parties completed review of public comments on the consent decree.
In a June status update, the parties to the consent decree proceeding explained that they are still considering whether to revise the consent decree in light of public comments and will soon either lodge a revised consent decree or move to enter the original consent decree.